Patent Office tries “Stack Overflow for patents” to find prior art

New site allows the general public to submit evidence of patent invalidity.

The United States Patent and Trademark Office (USPTO) hopes to improve patent quality by soliciting greater feedback from the general public about pending patents. Last year's America Invents Act included a provision requiring the Patent Office to accept submissions from the general public about patent validity, especially concerning "prior art"—evidence that the subject of a particular patent application had been previously invented by someone else.

In addition to allowing third parties to submit information directly to patent examiners, the USPTO has also worked with Stack Exchange, the company behind the popular programming Q&A website Stack Overflow, to create a new site called Ask Patents. (Stack Exchange is a syndication partner of Ars Technica.) Examiners or others looking for prior art can post questions about a specific application, and members of the general public can respond with evidence that an applicant was not the first to invent the subject matter of the application.

The new site is inspired by peer to patent, a pilot project launched by New York Law School in 2009 to help the USPTO solicit prior art from the public. The project was deemed a success, and policymakers evidently decided that Stack Exchange was the right vehicle for making the concept permanent.

The site is designed to handle two types of questions: general questions about patent law and requests for information specific to particular patents or patent applications. The hope is that in addition to its patent-busting function, it will develop into a site where practicing patent lawyers and inventors can answer each others' questions about patent law.

It's a worthwhile experiment, but we're skeptical that the site alone can cure what ails the patent system. Stack Overflow works because there are thousands of programmers who use any particular software platform as part of their regular jobs. As a result, someone in the Stack Overflow community generally has a ready answer to any given question. The pool of people scrutinizing patents is much shallower, however. In many industries, including software, the people with the most technical expertise generally don't spend a lot of time looking at patents, so it could be a challenge to attract the critical mass of technical experts that make the site truly useful to patent practitioners.

Still, given the dismal state of patent quality, a site like Ask Patents can only improve the situation. And it's possible that there are enough interested public-spirited individuals and private companies—Apple might want to have a look at Google's new patent applications, for instance—to make the idea work.

Presumably prior art searches today can be carried out privately, thus not telegraphing a new invention to competitors; wouldn't a Stack Overflow system enable companies to monitor the queries and indirectly keep apprised of competitors' efforts?

This system could work really well. It doesn't let the public approve or reject patents; it simply lets them try to find what's flawed or been done before. If they public can't, then the patent will likely be approved.

Question though: will they open up active patents and let the internets prove why they should be invalidated? That would be the day.

Presumably prior art searches today can be carried out privately, thus not telegraphing a new invention to competitors; wouldn't a Stack Overflow system enable companies to monitor the queries and indirectly keep apprised of competitors' efforts?

The patent system is supposed to be about sharing information with the public in exchange for exclusive rights to the concept (well, product anyhow) for a limited time. If this causes companies to not patent things they might want kept secret then that's fine. Other folks can figure out a way to do it and competition is restored.

Presumably prior art searches today can be carried out privately, thus not telegraphing a new invention to competitors; wouldn't a Stack Overflow system enable companies to monitor the queries and indirectly keep apprised of competitors' efforts?

The patent system is supposed to be about sharing information with the public in exchange for exclusive rights to the concept (well, product anyhow) for a limited time. If this causes companies to not patent things they might want kept secret then that's fine. Other folks can figure out a way to do it and competition is restored.

It's already like this in some cases anyways; some companies avoid getting patents so that competitors can't figure out how they make product XYZ, or run service ABC as efficiently as they can (example, Google and their custom hardware)

It's certainly a start! No-one should claim that the USPTO is horribly broken and then denigrate any attempts at a solution because it's not utterly perfect. The USPTO is going to need time and innovation to adapt to a rapidly changing intellectual environment. They have one, they don't seem to have the other, but this is a very creative tool to at least attempt to recruit the innovators they'll need to reform the laws.

If this causes an immediate nosedive in the number of patents granted, will some number crunching executive pressure the patent office to "do something" to "encourage innovation" (working off a theory that fewer granted patents means less innovation)?

Wow, the front page of Ask Patents is really lively. Apparently there's enough patent geeks out there to make this work, at least for now. A strong focus on software and electronics patents, of course, but that's just the StackExchange crowd.

It's certainly a start! No-one should claim that the USPTO is horribly broken and then denigrate any attempts at a solution because it's not utterly perfect. The USPTO is going to need time and innovation to adapt to a rapidly changing intellectual environment. They have one, they don't seem to have the other, but this is a very creative tool to at least attempt to recruit the innovators they'll need to reform the laws.

Mind you, I wonder how this will square with TPP....

But just because you can do something - just because a technology is there - does not mean it should be used and pass it off as "at least they tried something" -- WTF !!

The folks behind it are supposed to be intelligent - they should weigh their options - spend some time researching a course before slapping somethingtogether just because.

Hopefully they have - but I am simply responding to flaw in your statement.

I mean hell - technically you can wash your dishes in a swimming pool - does that mean you should ?

Wow, this is a step in the right direction. I am amazed that this level of cooperation with the internet patent geek set is coming out of the USPTO,... The optimist in me says, "let's take this and run with it to prevent BS software patents." The pessimist in me says, "it won't last."

Stack Overflow gets a lot of garbage on it like any other user generated content Site. Not finding it very useful and mostly it just gets in my way.

Hopefully they realize thay they're going to have to filter and moderate the hell out of it.

I hope they have a plan to throw adequate resources (staff hours to review, moderate, and investigate comments) at this effort. Otherwise it will be quickly labelled a failure. Given the amount of time it takes to get a patent app through the process already, I don't have high hopes. But it is a start!

And it's possible that there are enough interested public-spirited individuals and private companies—Apple might want to have a look at Google's new patent applications, for instance—to make the idea work.

Y'know, the large companies I've worked at consistently say never look at any other company's patents.

Why?

Because once you know that there might be a patent that you're infringing upon, you've crossed the line from unknowing infringement into willful infringement... which carries much higher penalties if somebody successfully sues you.

Stack Overflow gets a lot of garbage on it like any other user generated content Site. Not finding it very useful and mostly it just gets in my way.

Hopefully they realize thay they're going to have to filter and moderate the hell out of it.

I hope they have a plan to throw adequate resources (staff hours to review, moderate, and investigate comments) at this effort. Otherwise it will be quickly labelled a failure. Given the amount of time it takes to get a patent app through the process already, I don't have high hopes. But it is a start!

Good point - the worst case then would be failure due to poor planning/resources - which is then used as an example of why fixing the patent system is impossible...

Presumably prior art searches today can be carried out privately, thus not telegraphing a new invention to competitors; wouldn't a Stack Overflow system enable companies to monitor the queries and indirectly keep apprised of competitors' efforts?

I fail to see what the problem is. If you're applying for a patent, then what you're up to is already disclosed.

Presumably prior art searches today can be carried out privately, thus not telegraphing a new invention to competitors; wouldn't a Stack Overflow system enable companies to monitor the queries and indirectly keep apprised of competitors' efforts?

I think this is to respond to patents that have been filed, which are already public.

I agree that asking others if your patent looks silly before you've filed it would be a pretty stupid thing to do.

Like others have been saying, it's a nice start, but I'm worried that this attempt to patch the system will only delay the complete overhaul it needs. Prior art is a major issue, but the non-obviousness is an even more serious one that has been much more detrimental, which I'm not sure how well this will address.

Stage 1) For certain domains of general public interest, the site works extremely well. Free contributors provide evidence of prior art and great discussions of the applicability thereof.

Stage 2) Hey look! It works! Anything that generates a modicum of discussion arrives at a good answer in 1/10th the time of a dedicated patent examiner working on it!

Stage 3) Guess we don't need to hire any more patent examiners now.

Stage 4) Big businesses start astro-turfing. Certain patents generate a great deal of counter-argument for any possible prior art. Other domains are inundated with helpful volunteers with outstanding legal knowledge and an extensive array of prior art objections for any patent application that comes through.

Stage 5) Since examiners are expected to verify many more patents with this time saving system, they generally end up "rubber stamping" the community opinion.

Stage 6) In anything other than a patent of great general interest, those willing/able to spend on a team of dedicated lawyers to argue there side get the same frivolous patents through they always could. On the flip side, individual inventors unaware of this game find their valid patent applications thwarted by extensive citation of not-quite-right prior art.

Presumably prior art searches today can be carried out privately, thus not telegraphing a new invention to competitors; wouldn't a Stack Overflow system enable companies to monitor the queries and indirectly keep apprised of competitors' efforts?

Because once you know that there might be a patent that you're infringing upon, you've crossed the line from unknowing infringement into willful infringement... which carries much higher penalties if somebody successfully sues you.

So, I don't expect any large corporations to take part in this.

...or anybody who understands the patent system well enough to fear it.

We really need the "willful infrigement" law repealed; by discouraging people from reading patents, it kills the "spread the knowledge around" function of the patent system.

This is a good idea in theory, but in practice I don't see this being at all helpful. I say this because the USPTO is already woefully understaffed and underfunded -- who is going to have time to investigate these claims? There already are so few patent clerks that it takes several years to get a patent through. This is just more work for the already overburdened clerks -- I bet they don't like this one bit!

If they're having a hard time sorting through all the current patents, now they get to sort through all the current patents and a million peoples mindless comments about them. This is a great idea in theory, but I'll be surprised if they pull it off.

And it's possible that there are enough interested public-spirited individuals and private companies—Apple might want to have a look at Google's new patent applications, for instance—to make the idea work.

Y'know, the large companies I've worked at consistently say never look at any other company's patents.

Why?

Because once you know that there might be a patent that you're infringing upon, you've crossed the line from unknowing infringement into willful infringement... which carries much higher penalties if somebody successfully sues you.

So, I don't expect any large corporations to take part in this.

I could see a large corporation paying a third party (individual, subcontractor, whatever) to review patent applications defensively on their behalf. That creates enough isolation between them and the review (I think) while still allowing them to defend themselves before things reach court.

Presumably prior art searches today can be carried out privately, thus not telegraphing a new invention to competitors; wouldn't a Stack Overflow system enable companies to monitor the queries and indirectly keep apprised of competitors' efforts?

The patent system is supposed to be about sharing information with the public in exchange for exclusive rights to the concept (well, product anyhow) for a limited time. If this causes companies to not patent things they might want kept secret then that's fine. Other folks can figure out a way to do it and competition is restored.

Multiple commenters have noted that patents are by definition public, a point with which I agree.

The point of my comment was in regards to prior art research, which is (in my experience) carried out in secret in an effort to determine if an innovation is indeed unique, and if not, should be kept secret in order to avoid conflicts with other patents that might result in litigation if the innovation was made public.

An theoretical example might be if Company A decided to patent an algorithm for efficient shipping selection, but in a prior art search determined that Company B had already patented a similar algorithm.

If Company A's prior art search were public, then Company B might pay close attention and attempt to reverse-engineer Company A's shipping system in order to identify infringement that might go unnoticed if the prior art search were private.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.